Matthew D. Besser Cathleen M. Bolek Amy S. Glesius

Bolek Besser Glesius LLC

5885 Landerbrook Dr.
Cleveland, OH 44124
United States (US)
Phone: (216) 464-3004
Fax: (866) 542-0743

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FAQ

Cleveland, Ohio Employment Law Attorneys

 

What must I prove in an employment discrimination case to win?

Because there are many different types of employment discrimination claims, the necessary proof will vary from case to case. In general, however, a plaintiff in an employment discrimination case has to show the employer took some adverse job action against the employee motivated by the employee’s race, color, sex, religion, national origin, pregnancy, age, disability, genetic information, or military status. Some common examples of adverse job actions in employment discrimination cases include firing, refusal to hire, denial of promotion, harassment, and other workplace actions that affect the terms and conditions of employment.

How an employee goes about proving illegal discrimination depends on the particular facts of an employee’s case. Many times, evidence of an illegal motivation can be proven by showing the employer treated other employees outside the plaintiff’s protected class more favorably than the plaintiff under similar circumstances.

 

What is a “protected characteristic?”

Ohio and federal law prohibit discrimination against employees on the basis of certain protected characteristics. Those characteristics include race, color, sex, religion, national origin, pregnancy, age, disability, genetic information, and military status.

Ohio and federal law also protect employees from retaliation when they make a good faith claim of employment discrimination or harassment, or who participate in an investigation into employment discrimination or harassment. Such complaints are known as “protected activity.”

 

How do I prove I have a disability under the Americans with Disabilities Act?

The Americans with Disabilities Act (“ADA”) protects employees from employment discrimination on the basis of disability. To prove an employee has an actual disability, the employee must show he or she has “a physical or mental impairment that substantially limits one or more major life activities of such individual.” Each of those terms is defined by the ADA and by case law, and can require a very technical showing.

It is important to note that the ADA also protects employees who do not have an actual disability, but who are mistakenly “regarded as” disabled by their employers. In addition, the ADA protects employees who no longer have an actual disability, but did in the past—known as having a “record of” a disability. Lastly, the ADA prohibits discrimination against employees who themselves do not have a disability, but who are “associated” with someone who does, for instance a spouse or child.

 

What is a reasonable accommodation?

Under the Ohio and federal disability discrimination laws, employers are prohibited from discriminating against an employee with a disability who can perform the essential functions of the job “with or without a reasonable accommodation.” A reasonable accommodation is a modification of workplace policies or procedures that would allow the employee to perform the essential functions of the job. Employers are required to make reasonable accommodations of the known physical or mental limitations of an employee with a disability unless the employer can show doing so would pose an undue hardship.

Common examples of reasonable accommodations include making existing facilities accessible, job restructuring, part-time or modified work schedules, acquiring or modifying equipment, and reassignment to a vacant position. This is not an exhaustive list.

 

When can my employer ask about my medical conditions?

The Americans with Disabilities Act puts limits on when an employer can ask about an employee’s health or conduct medical exams. Before extending a job offer, an employer may not ask whether an applicant has a disability. An employer may make pre-employment inquiries whether an employee can perform job-related functions however. After extending an offer of employment, an employer may require a medical examination as a condition of employment, if all new employees are required to take the exam and any information obtained as a result is maintained in separate medical files not accessible by the employee’s supervisor. During employment, employers may not conduct medical examinations or ask about an employee’s health unless the examination or inquiries are job-related and consistent with business necessity.

 

Am I protected from discipline or being fired because I am pregnant?

Employers are required to treat pregnant employees the same as non-pregnant employees who are similar in their ability to work. This means that an employer can discipline or even fire you while you are pregnant, as long as the employer would treat a non-pregnant employee the same under similar circumstances.

 

If my employer laid me off but not a younger co-worker, is that age discrimination?

Ohio law and the federal Age Discrimination in Employment Act prohibit discrimination against employees who are age forty or older. When an employer fires or lays off an employee over forty, but retains a similarly situated substantially younger co-worker, it could be evidence of age discrimination, but it is not proof of age discrimination by itself. To determine whether age discrimination has occurred requires examining the facts and circumstances of the particular case, including the reason given by the employer and comparison of the older and younger employees’ performance, experience, and other relevant factors.

 

What should I do if I am being sexually harassed?

Employees who are being sexually harassed sometimes do not report it, whether out of fear from retaliation, shame, the hope that it will go away, or for several other understandable reasons. However, if you are being sexually harassed, it is important that you report the harassment to your supervisor, human resources, or another management employee. If the harasser is your supervisor, report it to someone else.

 

There are many reasons why employees who experience or witness sexual harassment in the workplace should report it.

First, the law protects employees from retaliation for reporting sexual harassment. Conversely, an employer only has an obligation to stop sexual harassment if it knows or should know harassment is occurring. If a victim of harassment unreasonably fails to report the harassment, and the employer does not have actual or constructive knowledge of the harassment, the employer may be able to avoid liability for the harassment.

Second, many sexual harassers will continue their behavior unless someone stops them. What might start out as offensive comments can escalate to touching and even sexual assault. Moreover, many sexual harassers will target multiple victims over time. An employee who does not report the harassment runs the risk that he or she will not be the harasser’s last victim, and that the next one will suffer even worse harassment.

These are just some of the reasons to report sexual harassment. There are others as well. Regardless of the reason, it is important that employees report sexual harassment whenever it exists in the workplace.

 

What is sexual harassment?

Sexual harassment is generally defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that unreasonably interferes with an individual’s job or that creates an intimidating, hostile, or offensive work environment.

Unlawful sexual harassment can include touching or comments. But not all teasing or offhand remarks will constitute sexual harassment. It is only when sexual behavior or comments are so frequent or severe that they create a hostile or offensive work environment that illegal sexual harassment occurs.

A harasser might be a victim’s supervisor, a co-worker, or even a client or customer. Both the victim and the harasser can be either male or female, and the victim and harasser can be the same sex

 

What damages can I recover for employment discrimination?

Most employment discrimination claims allow an employee to recover lost wages and benefits, including both back pay and front pay. Most claims permit recovery for emotional distress and punitive damages, the latter of which are designed to punish and deter discriminatory behavior by employers. Some claims do not allow for emotional distress or punitive damages but instead provide for statutory damages, which are usually a multiple of lost wages and benefits. Lastly, but significantly, because victims of employment discrimination cannot usually afford to pay an attorney out of pocket, the law allows a successful plaintiff to recover attorneys’ fees and costs of suit.

 

My supervisor mistreats me for no reason. Is that discrimination?

The Ohio and federal discrimination laws are not a “general civility code.” That means employers do not have to be nice to their employees. If your supervisor mistreats you because the supervisor is an unkind person or simply does not like you, that is not illegal discrimination. However, if your supervisor is mistreating you because of your race, color, sex, religion, national origin, pregnancy, age, disability, genetic information, or military status, or because you have complained about workplace discrimination or other illegal behavior, then the mistreatment might be illegal discrimination or retaliation.

 

What is the time limit for bringing an employment discrimination claim?

The time limits for bringing an employment claim under Ohio or federal law vary from as short as just a few weeks to as long as six years. The specific time limits for a particular employment claim depend on the type of claim involved. These time limits are very strict however, and failure to comply with them may result in forever losing the right to pursue a claim. In addition, some employment claims under Ohio and federal law have complicated and demanding procedural requirements before an employee can file a lawsuit. For these reasons, it is always best to consult with an experienced employment law attorney right away whenever your workplace rights are in jeopardy.

 

Is my employer required to give me a reason for firing me?

No. Ohio is an at-will employment state. That means that unless you have a contract of employment, your employer can fire you for any reason or no reason, as long as it is not an otherwise-illegal reason, for instance discrimination or retaliation. Your employer is generally not required to give you a reason for firing you in Ohio. However, if your employer refuses to give you a reason, or if the reason your employer gives you seems suspicious, you should consider whether the employer’s true motivation is discrimination or retaliation.

 

If I am a tipped employee, am I entitled to minimum wage?

The federal Fair Labor Standards Act, which governs payment of minimum wage under federal law, allows employers to take a “tip credit” toward its minimum wage for employees who customarily receive tips as part of their wages. Regardless, the employer must pay the employee at least $2.13 an hour, and must ensure that the employee receives at least the federal minimum wage of $7.25 an hour. If an employee’s tips, when combined with the employer-paid wages of at least $2.13 per hour, do not equal the minimum wage of $7.25 per hour, the employer must make up the difference.

 

Can I be fired for being a whistleblower at work?

Ohio and federal law prohibit employers from firing employees because they reported discrimination or harassment. If an employee makes a good faith report of suspected discrimination of harassment, the employer cannot fire the employee or take other negative action that would dissuade a reasonable employee from coming forward because of the report. Many other laws protect employees from retaliation for reporting various other kinds of illegal workplace behavior, including fraud on the government and violations of workplace safety laws.

 

What are my rights if my FMLA runs out?

The Family and Medical Leave Act provides only twelve weeks of job-protected leave in a given twelve month period. If the employee still needs additional leave, the FMLA does not protect the employee’s job. However, if the employee has a disability, the Americans with Disabilities Act might require the employer to provide some amount of additional leave as a reasonable accommodation, depending on the circumstances of the employee’s job and how much additional leave the employee will require.

 

I think I am being treated unfairly at work. Should I talk to a lawyer now or wait to see what happens?

If you have a question about your legal rights in the workplace, you should call an experienced employment lawyer. Employees who know their rights are better able to protect their rights. In many cases, even when an employee’s workplace rights were violated, the employer has a defense because the employee did not follow the right procedures. So you should not wait to seek the help of an employment law attorney.

 

Why should I call a lawyer who handles mostly employment law? Aren’t all lawyers supposed to know all of the laws?

The expression, “jack of all trades and master of none” is a good one. Employment law is complicated and the law is constantly changing. An attorney who does not focus his or her practice on employment law might not be aware of the many potential procedural and legal traps that await employees in these types of cases. Your workplace rights are too important to trust to someone who does not focus their practice on employment law.